Nairobi Law Monthly - - Contents - DR TOM OD­HI­AMBO

This is the year of know­ing the worth of de­vo­lu­tion

There is no doubt that de­vo­lu­tion was worth hav­ing. Pre­vi­ously sleepy vil­lage towns seem to be thriv­ing. A jour­ney to dif­fer­ent parts of Kenya re­veals changes that would not have been imag­in­able un­der the “cen­tralised” gov­er­nance of the last decade. There are enough signs that the de­vo­lu­tion of govern­ment has gone be­yond the Con­sti­tu­tion. On the ground, in mashinani at the least, for the very first time many Kenyans see, feel, ar­gue with, and most im­por­tantly, par­tic­i­pate in the life of their govern­ment, even if it is merely at the lo­cal level.

Kenyans must pro­tect and cul­ti­vate in­sti­tu­tions and prac­tices that will guar­an­tee them the growth of de­vo­lu­tion. At least that is the mes­sage I felt John Mu­takha Kangu of­fers in the book, “Con­sti­tu­tional Law of Kenya on De­vo­lu­tion” (Strath­more Univer­sity Press, 2015). This is a book about what the Con­sti­tu­tion of Kenya says of, de­mands from, jus­ti­fies and guar­an­tees about de­vo­lu­tion for Kenyans. This is a book for lawyers and those who study ju­rispru­dence. But it is also the kind of book Kenyans need to read; for it de­mys­ti­fies some of the fa­bles about de­vo­lu­tion that are com­monly told around din­ner ta­bles, at the mar­ket, in chamas or clan as­so­ci­a­tion meet­ings, in news­pa­per col­umns, etc, in this coun­try.

Mu­takha Kangu makes it easy to read his book be­cause he di­vides it into twelve sec­tions in­clud­ing the in­tro­duc­tion, in­ter­pre­ta­tion of the de­vo­lu­tion pro­vi­sions in the con­sti­tu­tion, his­tory of de­vo­lu­tion, val­ues, ob­jec­tives and prin­ci­ples of de­vo­lu­tion, gov­er­nance struc­tures, func­tions and pow­ers of the dif­fer­ent lev­els of govern­ment, fi­nanc­ing coun­ties, su­per­vi­sion of county gov­ern­ments, in­ter­gov­ern­men­tal re­la­tions, the se­nate and tran­si­tion to de­volved govern­ment. One can choose what to read and what to ig­nore. But one can as well read the whole book in th­ese bits and pieces be­cause they are fur­ther sub­di­vided into smaller bits that run some­times for just a page.

But it is the sub­stance of the book that should in­ter­est Kenyans. For, al­though the Con­sti­tu­tion guar­an­tees Kenyans de­vo­lu­tion of govern­ment, the re­la­tion­ship be­tween var­i­ous arms of the govern­ment of Kenya is still very con­fus­ing. There are too many grey ar­eas that need clar­ity on who does what, how, when, why and with what con­se­quences be­tween the cen­tral govern­ment and the coun­ties. The me­dia is full of re­ports about the clash be­tween gov­er­nors and the ex­ec­u­tive, par­lia­ment, the courts, and the se­nate over the func­tions, the lim­its of their pow­ers, ac­cess

to and use of re­sources etc, all the time.

This is why a study of the mag­ni­tude of “Con­sti­tu­tional Law of Kenya on De­vo­lu­tion” needs to be trans­lated into ac­ces­si­ble lan­guage and dis­sem­i­nated to the pub­lic. To an ex­tent, Kangu’s lan­guage avoids too much legalese. But much of the book is bogged down by ref­er­ence to and use of the lan­guage that is more suit­able for the law class and the court room. There is no doubt that the first au­di­ence imag­ined by Kangu is the le­gal fra­ter­nity. In­deed, Kenyan law schol­ars and those in­ter­ested in the law cur­ricu­lum will find this book a wor­thy ad­di­tion to their li­braries.

Yet, it is what I would call the small print in “Con­sti­tu­tional Law of Kenya on De­vo­lu­tion” that I found com­pelling. By small print I mean the “con­clu­sion” sec­tions of each chap­ter in the book. For me, as a lay reader, I found th­ese sec­tions to carry the au­thor’s crit­i­cal thoughts on the Con­sti­tu­tion and de­vo­lu­tion in Kenya. For in­stance, the con­clu­sion for the Gen­eral In­tro­duc­tion says, “Al­though de­vo­lu­tion in the Kenyan con­text need not be la­belled a fed­er­a­tion, what is clear is that it is not mere de­cen­tral­i­sa­tion. The sys­tem has quite a num­ber of fed­eral fea­tures which are en­trenched in the Con­sti­tu­tion and can­not be changed on the whim of the na­tional govern­ment.”

One hardly hears such a pow­er­ful ar­gu­ment in pub­lic discourse in Kenya to­day. But wouldn’t it be worth spec­u­lat­ing – even if it is for mere in­tel­lec­tual rea­sons – that th­ese very same “fed­eral fea­tures” may, in fu­ture, ig­nite de­mands for fed­er­al­ism, con­sid­er­ing the un­will­ing­ness of the cen­tral govern­ment to recog­nise that “all sov­er­eign power be­longs to the peo­ple of Kenya?”

The con­clu­sion to Chap­ter Two of the text is on the “Prin­ci­ples and rules for the in­ter­pre­ta­tion of the Con­sti­tu­tion and Bill of Rights”. Here, Kangu raises what is a very con­tested sub­ject be­tween those who still de­sire to cen­tralise power and those who wish to gov­er­nance to the grass­roots. He ar­gues that “While county-em­pow­er­ing pro­vi­sions must be in­ter­preted lib­er­ally, broadly and gen­er­ously in favour of the coun­ties in or­der to give full ef­fect to the ob­jec­tives and pur­poses of de­vo­lu­tion, de­vo­lu­tion in­ter­ven­tion and lim­i­ta­tion pro­vi­sions must be in­ter­preted nar­rowly and re­stric­tively in or­der to re­strain na­tional govern­ment and cre­ate space for the county gov­ern­ments and the sys­tem of de­vo­lu­tion to take root.”

Kangu elab­o­rates that the courts must mod­er­ate the re­la­tion­ship be­tween the two en­ti­ties. This is an ar­gu­ment that is rooted in the process that led to de­vo­lu­tion. It is a propo­si­tion that seeks to de­fend the in­de­pen­dence of county gov­ern­ments to gov­ern and pur­sue lo­cal de­vel­op­ment with­out un­due in­ter­fer­ence from the na­tional govern­ment. For those fa­mil­iar with the his­tory of Kenya, they would un­der­stand why such an ar­gu­ment is fun­da­men­tal to the re­al­i­sa­tion of the dreams of de­vo­lu­tion.

Con­sti­tu­tional en­ti­tle­ments

On a sub­ject such as fi­nanc­ing of the county gov­ern­ments, with­out which they would col­lapse, Kangu makes a con­clu­sion that fun­da­men­tally ques­tions the cur­rently preva­lent ar­gu­ment that one or the other re­gion of the coun­try must “work” with the govern­ment in or­der to en­joy maen­deleo. He writes, “… al­though the na­tional govern­ment has been as­signed rev­enue rais­ing pow­ers over the most im­por­tant and lu­cra­tive tax bases, the rev­enue gen­er­ated ac­crues jointly to na­tional and county gov­ern­ments, which must share it. Thus, the trans­fers from this rev­enue to county gov­ern­ments are not dis­cre­tionary do­na­tions by the na­tional govern­ment, but con­sti­tu­tional en­ti­tle­ments that must be de­ter­mined in an ob­jec­tive man­ner and not on the ba­sis of political pa­tron­age.”

In other words, state fund­ing for any part of the coun­try is a con­sti­tu­tional right and it shouldn’t mat­ter whether a county voted for the party in of­fice or not. Also, this ar­gu­ment should be pushed to its log­i­cal con­clu­sion, which is that con­sid­er­ing the rev­enues from the coun­ties are what ul­ti­mately ends with the ex­che­quer, why does the na­tional govern­ment still have con­trol over a larger share of the “na­tional in­come”?

I would strongly rec­om­mend the chap­ter on “Su­per­vi­sion of county govern­ment affairs” for any­one wish­ing to con­test for of­fice in the coun­ties. For, al­though the con­sti­tu­tion is quite clear on how the na­tional govern­ment should mon­i­tor and su­per­vise the county gov­ern­ments, with the “pow­ers … ex­pressly and suf­fi­ciently cir­cum­scribed and con­strained to avoid abuse and not de­tract from the prin­ci­ple of dis­tinct and au­ton­o­mous county govern­ment”, we have al­ready seen more than enough ex­am­ples of the na­tional govern­ment’s over­bear­ing at­ti­tude to­wards coun­ties, in­clud­ing the silly ar­gu­ment about whether gov­er­nors should “fly flags” or on the process of “im­peach­ing” a gov­er­nor, etc.

I think that the sig­nif­i­cance of “Con­sti­tu­tional Law of Kenya on De­vo­lu­tion” is in Mu­takha Kangu’s ef­forts to clear the cob­webs that nor­mally en­mesh le­gal lan­guage, in this case in re­la­tion to how the con­sti­tu­tion en­vis­ages the work­ing of the con­sti­tu­tion, and also in re­lat­ing the case of Kenya to that of South Africa, which has a fairly de­volved govern­ment but which is not much known be­yond the coun­try. In other words, Kangu is sug­gest­ing that as Kenyans ex­per­i­ment with de­vo­lu­tion, there is ex­pe­ri­ence from else­where in Africa from which they can learn.

The writer teaches lit­er­a­ture at the Univer­sity of Nairobi; Tom.od­hi­ambo@


Mu­takha Kangu pre­sent­ing a copy of his book to Raila Odinga

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